Discussion on the law that applies to or affects Australia's emergency services and emergency management, by Michael Eburn, PhD and Barrister.

NSW premises made unsafe by storm – obligations of the SES

This question comes from a volunteer with NSW SES who has been involved in responding to recent requests for assistance following storm damage. In one case

… a falling tree had done substantial damage to the roof of a single story house. Due to the lateness of the call, the amount of jobs we had previously completed, the proximity to Christmas and the complexity of the job, we decided to refer the tree to professionals who could not complete the job until about 4 days later (after Christmas.)

While inside the house, we made an assessment that there was structural damage to one room and, after conducting a check for asbestos we decided to no longer enter the house for our own safety.

We had a discussion with the landlady about the structural damage and advised her in a strictly non-professional manner that it was probably ill advised to have the tenants re-enter the house until it had been assessed by an engineer or whoever her insurer wanted to use. We also advised her we had taped over the entrances to the house with SES tape to preserve public safety but that we had no legal powers to require her or her tenants not to enter (she questioned this specifically.)

So my question is: do we hold any liability in the event of secondary collapse and did we have an obligation to pass the structural damage to another agency? The landlady was very reasonable, or so it seemed, but if she wasn’t then she might have refused to offer the tenants alternative accommodation and they may have ended up staying and potentially being injured in a secondary collapse – which is where I see potential liability.

Would it change the answer if we had not taped the area, or if we hadn’t given her any advice regarding the structure?

The team that attended was composed of 6 experienced GLR operators and we’ve all done our USAR [Urban Search And Rescue] upgrade. Does that mean that we have some sort of specialist knowledge and would that impact the answer?

There are several questions here and the starting point is to remember that one is only responsible for things that you are responsible for – that’s cryptic so let’s explore that in more detail by breaking this into separate questions.

First, do we hold any liability in the event of secondary collapse and did we have an obligation to pass the structural damage to another agency?

The State Emergency Service Act 1989 (NSW) s 8 says that the functions of the SES include:

(aa) to protect persons from dangers to their safety and health, and to protect property from destruction or damage, arising from floods, storms and tsunamis,

(a) …

(b) to act as the combat agency for damage control for storms and to coordinate the evacuation and welfare of affected communities …

The problem with this definition, and the Act generally, is that it gives no guidance on the limits of the SES responsibility. If people are not protected, that is if someone suffers loss or damage, or injury or death, due to a storm, flood or tsunami, it can’t be that the SES has failed to perform its functions. For example, putting hurricane rated roofs on every NSW property would ‘protect persons from dangers to their safety and health, and to protect property from destruction or damage, arising from … storms’ and so be consistent with the functions set out in s 8(1)(aa) but no-one would seriously argue that there is an obligation upon the SES to do that. So what is the SES to do to meet its obligations under s 8(1)(aa)? The answer must be that the SES has to do whatever it thinks appropriate but I would suggest no court would ever accept that s 8(1)(aa) imposes a legal duty upon the SES. It is merely a description of the parliament’s intention of what the SES is to do, rather than a section intended to give rise to legal rights – see FRNSW and what does it mean to ‘proceed with all speed’? (October 6, 2015).

Equally the response role (s 8(1)(b)) does not explain what the SES is to do. The obligation to Act as a ‘combat agency’ won’t give rise to a duty to be enforced by an aggrieved person. We can draw an analogy with NSW Fire and Rescue. Having put a fire out, the fire brigade are under no obligation to repair the house, and although they have the power to render the premises safe (which they can do by either shoring it up or even knocking it down; Fire Brigades Act 1989 (NSW) s 17) it’s unlikely they would be liable for failing to do so in particular if they can demonstrate that they thought about it and came to ‘good faith’ conclusion that such action wasn’t necessary (Fire Brigades Act 1989 (NSW) s 78). Equally, the SES has some power to make premises safe from immediate danger and to that end the Commissioner may, during the response to an emergency caused by a flood or storm (ss 19 and 20), take possession of, and remove or destroy anything in an emergency area or ‘part of an emergency area that may be dangerous to life or property’ (s 22A(c)).

Further, it’s not actually true that the SES has ‘no legal powers to require [the tenants or owner] not to enter’ unsafe premises. Where the emergency is caused by a storm, the Commissioner or an authorised emergency officer may ‘direct, a person … to leave any particular premises and to move out of an emergency area or any part of an emergency area’ (s 22(1)). Just because the Commissioner ‘may’ do these things (ss 22 and 22A) does not, however, mean that the Commissioner or the SES will be liable if those actions are not taken. The presence of a discretionary power (‘may’) does not give rise to a legal duty to exercise that power.

Where the emergency services have been found to be under a duty of care to those affected by an emergency, it is generally limited to a duty not to make the situation worse, not to make it better (see Liability for Fire – A Review Of Earlier Posts (January 8, 2016)). Imagine a storm and a leaking roof. The fact that a person has rung the SES doesn’t make the SES liable for any damage that occurs between the time of the phone call and the time of the response even if that response time is measured in days rather than minutes. The SES only has limited resources and has to prioritise the responses it receives, whether that’s by some triage process or on a simple ‘first come first served’ basis. If the SES does turn up and tarps the roof, but does it in such a way that water still gets in, it’s hard to see any liability there either. The SES didn’t actually cause the damage to the roof. As with fire brigades I would think the extent of the duty (if any) is not to make the situation worse. At the end of the day, damage to the property is the property owner’s problem.

In the brief scenario given I can’t see how the actions of the SES has made the situation worse. My answer to the first question ‘do we hold any liability in the event of secondary collapse and did we have an obligation to pass the structural damage to another agency’ is, unless the SES increased the risk or made the situation worse, no.

Second, what if the landlady was NOT very reasonable and ‘refused to offer the tenants alternative accommodation and they may have ended up staying and potentially being injured in a secondary collapse’?

The relationship between the landlord and tenant is one based on contract and the terms of their lease. Generally speaking it is the landlord’s duty to provide premises that are safe and habitable. Whether there would be an obligation upon the landlord to provide alternative accommodation, or simply to terminate the lease on the basis of ‘frustration’ (ie the lease is frustrated if the premises are no longer habitable) would depend on the terms of the lease and the nature of the damage. Fundamentally, however, it is not the SES’ job to protect tenants from the landlord.

The situation may be different if the SES didn’t warn the landlord of their concerns, or more importantly, gave a positive assurance that the premises were indeed safe (see Liability for Advice on Dangerous Trees (June 13, 2016)) but that was not the case here (and for further discussion on this point, see below). Where the SES members express their concerns – which were sufficiently serious that the SES refused to enter the premises – then the obligations between landlord and tenant are a matter for the landlord and tenant. If that were not the case you might get a situation where the SES turns up to damaged property and put a tarp on and leave it at that because the landlord is willing to pay for the tenant’s hotel until the job is repaired, and on another job the SES would end up paying for out of hours trades to come and fix the premises because the landlord refuses to take action and the tenants have no where to go. It can’t be the law that the decision of the landlord imposes a duty on the SES.

Would it change the answer if we had not taped the area, or if we hadn’t given her any advice regarding the structure?

I think it might if the danger was obvious to the SES and it was clear that the occupants and/or owner didn’t appreciate the danger or were going to act in a hazardous way. In that case the SES is not responsible for other’s actions but they are responsible for their own, so they are responsible for not sharing their opinion. If the SES gave a positive assurance that the premises were indeed safe and that it was OK to move back in, it could even be that the SES actions made the situation ‘worse’ particularly if it was clear that the landlord or tenant was relying on the SES advice. For example, if the landlord said ‘I’ll put the tenants up in a hotel and I’ll get my repairer to look at the premises next week’ and the SES members said ‘no need for that, we’ve made it safe, it will be fine’ so that the landlord and tenants agreed that they will stay in the premises, that then fall down it could be argued that the assurance of safety actually increased the risk and most readers would probably think that no reasonable member of the SES would give advice in those terms. And if that’s the case, that’s the test for ‘negligence’.

That’s not to say that an overcautious response is called for – ie warn every occupant of a storm damaged house to leave until engineers have inspected it. The obligation (if there is one) is to act ‘reasonably’ and remember that the occupants are ultimately responsible for the damage and for their own well being. It’s not the case that the SES are getting sued in these sort of situations and it’s not likely that they will be so it’s not appropriate to make decisions designed to ‘cover your backside’ rather than reflecting a genuine belief in what’s required.

The team that attended was composed of 6 experienced GLR operators and we’ve all done our USAR [Urban Search And Rescue] upgrade. Does that mean that we have some sort of specialist knowledge and would that impact the answer?

It does mean you have more knowledge than someone who hasn’t done the USAR training but I don’t see it affects the answer. If you think the premises are dangerous you warn the occupants and there’s not much more you can do. If the USAR training means you see danger where perhaps others may not then so be it.

What’s an ‘emergency’?

This is not a question my correspondent asked but it is raised by this discussion and also in the various discussions about the road rules. As noted above there are powers to compel evacuation and to render premises safe in an emergency. Is a tree on a house an ‘emergency’?

‘Emergency’ is not defined in the SES Act but words in the SES Act ‘have the same meanings as in the State Emergency and Rescue Management Act 1989, except in so far as the context or subject matter otherwise indicates or requires (State Emergency Service Act1989 (NSW) s 3). It follows that the definition of ‘emergency’ in the SES Act is the definition found in the SERM Act. The SERM Act defines an ‘emergency’ (s 4(1)) as

(a) endangers, or threatens to endanger, the safety or health of persons or animals in the State, or

(b) destroys or damages, or threatens to destroy or damage, property in the State,

being an emergency which requires a significant and coordinated response.

This begs the question of what is ‘a significant and coordinated response’. On one view a response that involves a single unit, whether it’s a fire appliance, an SES team or an ambulance is not ‘coordinated’, they just work by themselves. On another view, any such response is both significant and coordinated. It’s significant because of the resources that are involved in setting up and training a fire crew, SES crew or team of paramedics. Further it’s coordinated as even a single vehicle response requires the relevant ComCen to be aware of who is going, and being prepared to back them up and otherwise fill gaps left by their response. When the ComCen dispatches a fire crew, ambulance or SES unit there is a degree of coordination going on. And for the person with chest pain, or a person who calls the SES for a tree on their roof, it’s their emergency even if it’s ‘business as normal’ for the response service.

A tree on a roof, or a house fire, or a multi vehicle car accident is certainly not the sort of emergency that will trigger the State Emergency Response Plan or even activate the Local Emergency Operations Controller (LEOCON) but that is not the test for what is, or is not, an ‘emergency’. It would be my view that any response to a triple zero call, at least, is an ‘emergency response’ because the response by a fire brigade or ambulance service is significant and coordinated and the reason they are a triple zero service is because they are there to respond to events that without a timely response can lead to death and/or widespread property damage. Equally the response by the SES to rescues, including flood rescue, would be an emergency response. I’m not sure about a response to a tree on a roof, even if it’s a ‘significant and coordinated’ response a tree on a roof has already done the damage and the SES isn’t under an obligation to make good the damage done by a storm, any more than a fire brigade is under an obligation to make good the damage done by fire. And a fire brigade going to inspect a fire ground where the fire has been extinguished is not going to an emergency. The fire brigade are there to put the fire out – to remove the hazard. Having done that it’s the property owner’s problem. It may be an emergency response for the SES to go to stop a tree falling on a house, but once it’s fallen, the emergency is over.

A final word

Like most of discussions on this blog, it’s all very interesting from a theoretical perspective but not really a problem. Remember the emergency services are not regularly sued over their response. In the situation described the damage done to the building was done by the storm. If there is a further collapse that is also caused by the storm. It’s only if the SES made the situation worse that it could be said to be caused by the SES. If the SES take control of the premises and, say knock it down (relying on s 22A) then any damage is deemed to be damage caused by the storm (s 25A). Further the SES and its members are not liable for ‘good faith’ decisions (s 25) so if they, in good faith, determine that the premises were rendered safe by taping it up and warning the landlord, there can’t be liability for not taking further action such as ordering an evacuation or knocking the building down.

Conclusion

The only way I could see liability in the scenario described would be if the SES positively assured the home owner that the house was safe and not going to fall down in circumstances where it was obvious that the occupants were relying on the advice of the SES. In most cases, if people were to ask ‘is it safe’ the SES would say something like ‘we’ve done what we can to stop the rain coming in but we don’t know what damage the tree has actually done to the structure of the house’. And in this case where the SES has made a decision that the premises are too unsafe for the SES to enter, then communicating that seems reasonable. What people do in response to that advice is a matter for them.

One thought on “NSW premises made unsafe by storm – obligations of the SES”

Though it doesn’t bear any relevance to the legal questions here it’s worth noting that either the tenants or the landlord (or both) may be covered by their respective insurance companies for ‘temporary accommodation’, and even lost rent where the landlord and tenant negotiate a rent reduction during the period of uninhabitability. As always a recommendation to “speak with your insurance company” is a good idea.

As an aside – do you think advice from the SES may have any bearing on the insurance company deciding the the premises are uninhabitable?